Ziegler v. Wendel Poultry Serv., Inc.

• Decision Date: 26 May 1993
• Docket Number: No. 92-413,92-413
• Citation: 67 Ohio St.3d 10,615 N.E.2d 1022
• Parties: , 83 Ed. Law Rep. 706 ZIEGLER, Admr., Appellant and Cross-Appellee, v. WENDEL POULTRY SERVICES, INC. et al., Appellants and Cross-Appellees; Wynford Local School District Board of Education, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 10

67 Ohio St.3d 10

615 N.E.2d 1022, 83 Ed. Law Rep. 706

ZIEGLER, Admr., Appellant and Cross-Appellee, v. WENDEL POULTRY SERVICES, INC. et al., Appellants and Cross-Appellees;

Wynford Local School District Board of Education, Appellee and Cross-Appellant.

No. 92-413.

Supreme Court of Ohio.

Submitted March 16, 1993.

Decided May 26, 1993.

Oxley, Malone, Fitzgerald & Hollister, Michael J. Malone and Julie A. Davenport, Findlay, for appellants and cross-appellees Wendel Poultry Services, Inc. and Terry E. Hummel.

Shuler, Plank, Morgan & Brahm and Gordon P. Shuler, Columbus, Spurlock, Sears, Pry & Griebling and Eric H. Griebling, Bucyrus, for appellee and cross-appellant.

RICHARD N. KOEHLER, Acting Chief Justice.

The parties have raised numerous propositions of law, which are set forth in their entirety in the appendix to this opinion. We will consider the issues raised by subject matter. We find that two of Ziegler's and Wendel's arguments have merit, and we therefore reverse the decision of the court of appeals.

I Assured Clear Distance

Wendel and Ziegler both contend that the appellate court erred in holding that Wynford was entitled to a directed verdict on the basis that Hummel was negligent per se because he violated R.C. 4511.21(A), the assured-clear-distance statute. They argue that this conclusion by the appellate court, finding Hummel negligent as a matter of law, impermissibly invaded the province of the jury. We agree.

R.C. 4511.21(A) provides that "no person shall drive any motor vehicle * * * at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead." "The assured-clear-distance statute is a specific requirement of law, the violation of which constitutes negligence per se." Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66, 69, 4 OBR 155, 157, 446 N.E.2d 454, 456. However, a collision does not establish a violation of R.C. 4511.21(A) in every case. Id. at 69, 4 OBR at 158, 446 N.E.2d at 457; Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, 7, 3 O.O.3d 4, 5, 358 N.E.2d 634, 636.

" ' * * * Violation of the statute [R.C. 4511.21] and a finding of negligence per se depends [sic ] on whether there is evidence that the driver collided with an object which (1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction as the driver, (3) did not suddenly appear in the driver's path, and (4) was reasonably discernible. * * * ' " Junge v. Brothers (1985), 16 Ohio St.3d 1, 3, 16 OBR 254, 255, 475 N.E.2d 477, 479-480, quoting Blair, supra, 49 Ohio St.2d at 7, 3 O.O.3d at 5, 358 N.E.2d at 636.

Where conflicting evidence is presented as to any of the elements necessary to establish a violation of the statute, a jury question is created. Tomlinson, supra, 4 Ohio St.3d at 69, 4 OBR at 158, 446 N.E.2d at 456. "Especially in cases involving the assured-clear-distance statute, which, by definition, require evaluation Construing the evidence most strongly in Ziegler's and Wendel's favor, we find that reasonable minds could reach different conclusions as to whether Hummel violated the assured-clear-distance statute and therefore a directed verdict is improper. See Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 28 OBR 410, 412, 504 N.E.2d 19, 21; Sabo v. Helsel (1983), 4 Ohio St.3d 70, 72-73, 4 OBR 158, 161, 446 N.E.2d 457, 459-460. Evidence was presented from which the jury could reasonably conclude that Scott's bus suddenly appeared in Hummel's lane of travel within Hummel's assured clear distance ahead and rendered him unable, in the exercise of ordinary care, to avoid a collision. See Erdman v. Mestrovich (1951), 155 Ohio St. 85, 44 O.O. 97, 97 N.E.2d 674, paragraph two of the syllabus; Smiley v. Arrow Spring Bed Co. (1941), 138 Ohio St. 81, 20 O.O. 30, 33 N.E.2d 3, paragraph two of the syllabus. In effect, Scott testified at one point that she could see only twenty-three feet in the dense fog when she began her left turn onto Route 30, a heavily traveled truck route. She further testified that she assumed that all vehicles would be traveling at thirty-five m.p.h. in the extremely foggy conditions. She had achieved the speed of approximately twenty-two m.p.h. when she reached her lane of travel. Expert witnesses testified that Scott should not have pulled out onto Route 30 under these conditions and that it was impossible for Hummel to avoid the accident in the exercise of ordinary care.

of the conduct of the driver in light of the facts surrounding the collision, the judgment of a jury is more likely to achieve a fair result than is a judge-made rule of law." Blair, supra, 49 Ohio St.2d at 9, 3 O.O.3d at 6, 358 N.E.2d at 637.

Further, there was evidence from which the jury could reasonably conclude that the bus was not reasonably discernible in the heavy fog. See Junge, supra, 16 Ohio St.3d at 3-4, 16 OBR at 256, 475 N.E.2d at 480; Tomlinson, supra, 4 Ohio St.3d at 69, 4 OBR at 158, 446 N.E.2d at 456; Blair, supra, 49 Ohio St.2d at 9-10, 3 O.O.3d at 6, 358 N.E.2d at 637. Wynford relies upon Woods v. Brown's Bakery (1960), 171 Ohio St. 383, 14 O.O.2d 145, 171 N.E.2d 496, in which this court stated that "[t]he assured-clear-distance rule * * * applies to drivers of motor vehicles approaching an intersection on intersecting roads, in instances where such converging vehicles at the intersection are obscured by fog." Id. at paragraph one of the syllabus. However, in Sabo, supra, a case involving similar facts to those in the case at bar, we stated, "[i]t is important to note that the question of liability was submitted to the jury in Woods." Id., 4 Ohio St.3d at 72, 4 OBR at 160, 446 N.E.2d at 459. We went on to discuss the preference for a jury determination of the facts and concluded that because conflicting evidence was presented, particularly regarding the density of the fog and the amount of visibility, a directed verdict was improper. Id. at 72-73, 4 OBR at 161, 446 N.E.2d at 459-460. We find Sabo to be controlling. In the present case, conflicting evidence was presented as to visibility in the fog, and we believe the Accordingly, we sustain Ziegler's and Wendel's propositions of law on this issue, and we reverse the decision of the appellate court that a directed verdict should have been granted in favor of Wynford and that the jury should have been instructed that Hummel was negligent per se. ¹

issue of whether the bus was reasonably discernible was properly submitted to the jury.

II Jury Interrogatories

The court of appeals held that the trial court erred when it refused to submit to the jury six of the twelve interrogatories prepared by Wynford, finding that the rejected interrogatories were "timely and properly submitted determinative questions." We have reviewed the rejected interrogatories. We find they do not address determinative issues and that at least some of them are ambiguous and confusing and therefore the trial court did not err in failing to submit them to the jury. ²

Civ.R. 49(B) provides in pertinent part:

"The court shall submit written interrogatories to the jury, * * * upon request of any party prior to the commencement of argument. * * * The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves. The interrogatories may be directed to one or more determinative issues[,] whether issues of fact or mixed issues of fact and law."

In arguing that the trial court should have submitted the disputed interrogatories, Wynford relies upon Cincinnati Riverfront Coliseum, Inc. v. McNulty Co. (1986), 28 Ohio St.3d 333, 28 OBR 400, 504 N.E.2d 415. In that case, we stated that "[f]ollowing a timely request by a party, a mandatory duty arises to submit In Miller v. McAllister (1959), 169 Ohio St. 487, 494, 8 O.O.2d 485, 490, 160 N.E.2d 231, 237, we defined "determinative issues" as "ultimate issues which when decided will definitely settle the entire controversy between or among the parties, so as to leave nothing for the court to do but to enter judgment for the party or parties in whose favor such determinative issues have been resolved by the jury." Similarly, the 1970 Staff Note to Civ.R. 49 cites a definition of "determinative" as "an issue the deciding of which by the jury may in and of itself dispose of the entire case."

                written interrogatories to the jury, provided they are in the form the court approves."  Id. at 336, 28 OBR at 402, 504 N.E.2d at 418.   Nevertheless, Civ.R. 49(B) does not require the trial judge to act as a " ' "mere conduit who must submit all interrogatories counsel may propose." ' "  Ramage v. Cent. Ohio Emergency Serv., Inc.  (1992), 64 Ohio St.3d 97, 107, 592 N.E.2d 828, 836, quoting Ragone v. Vitali & Beltrami, Jr., Inc.  (1975), 42 Ohio St.2d 161, 165, 71 O.O.2d 164, 166, 327 N.E.2d 645, 649.   The court retains limited discretion to reject proposed interrogatories where they are ambiguous, confusing, redundant, or otherwise legally objectionable.  Proper jury interrogatories must address determinative issues and must be based upon the evidence presented.  Ramage, supra, at paragraph three of the syllabus.  Civ.R. 49(B) does not require submission of an interrogatory which is " 'merely of a probative or evidentiary nature.' "  Ragone, supra, 42 Ohio St.2d at 169, 71 O.O.2d at 168, 327 N.E.2d at 651
                

In the present case, the trial court submitted Wynford's first six proposed interrogatories to the jury. These interrogatories dealt with determinative issues such as which parties were negligent, what percentage of the negligence was attributable to those parties, and the amount of damages. See Ragone, supra, at paragraph two of the syllabus. The remaining interrogatories, which were rejected by the trial court, would have required the jury to state specific measurements of distance, visibility and speed, matters which are...